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Patently absurd

It was interesting to see that a judge at the Court of Appeal, who specialises in intellectual property law has waded into the software patent debate, attacking the patent system in the US for patenting “anything made by man, under the sun".

Sir Robin Jacob (opens in new tab)was particularly critical of the US practice of patenting of software business methods, which he says could effectively be used to cover a new and improved method of stacking oranges on a barrel.

Software patents have rightly, in my humble opinion, drawn the ire of many developers. Whilst large companies argue patents encourage research and development, opponents argue that they favour the large company over the small and could hinder the development of open source software. It’s easy to see why

The broad definitions used in patents can make it virtually impossible for a small company to complete a patent search and ensure that another organisation will not seek to assert a patent against their work.

This is not a problem the big boys need to worry about as your Microsoft, Sun Microsystems, SAP, IBM and HPs of this world generally have cross-licensing agreements where they agree not to sue each other over patent infringements.

Then there are the patent leeches. These are companies that lack anything that would contribute to society, like a product say, but instead hoard intellectual property with a view to sucking the lifeblood from any company unfortunate to cross their patent path.

Your average open source coder or small-scale software developer lacks the funds to launch a legal fight so, in the case of the software developer, resorts to paying a license. In effect, what we have is what open source guru Bruce Perens likens to a kind of patent tax from which larger companies are exempt.

This is hardly the kind of environment to encourage innovative software development and, taken to its extreme, it could mean that only large companies have the legal means to develop software. There is, for example, a long-standing fear (opens in new tab)that Microsoft’s current insatiable desire for acquiring new patents could ultimately be turned against the company’s upstart open source rival, Linux.

Judge Jacob’s comments come at an interesting time as software patents look like they are about to be placed back on the European agenda (opens in new tab), after having been kicked temporarily into touch by the European Parliament in July last year: Europe's Internal Markets Commissioner Charlie McCreevy has just announced a public consultation on changes to the European patent system.

If a leading judge dealing with intellectual property is voicing his concerns you’d hope the European Commission would sit up and take notice. Hang on, what’s that big pink thing flying past my window…